Punjab-Haryana High Court
Gurdeep Singh And Others vs Jeet Singh And Others on 22 April, 2010
Bench: Mukul Mudgal, Jasbir Singh, Rajive Bhalla
CIVIL REVISION NO. 1929 OF 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: April 22, 2010.
Parties Name
Gurdeep Singh and others
...PETITIONERS.
VERSUS
Jeet Singh and others
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL,CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE RAJIVE BHALLA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Yadvinder Singh Turka,Advocate, for the petitioners Mr. J.S. Cooner, Advocate, for the respondents. MUKUL MUDGAL, CHIEF JUSTICE (oral) Judgment.
This Reference arises from an order made by one of us (Rajive Bhalla, J.) by an order dated October 29, 2009, by which the learned Single Judge while noticing the judgments in Samee Khan v. Bindu Khan, AIR 1998 Supreme Court 2765, Tayabbhai M. Bagasarwalla & another v. Hind Rubber Industries Private Limited, 1997(1) Apex Court Journal 246 and Smt. Rajinder Kaur v. Sukhbir Singh, 2002(1) Civil Court Cases 125 (P&H) doubted the correctness of the judgment of a Division Bench in Rachhpal Singh v. Gurdarshan Singh, AIR 1985 Punjab and Haryana 299, to the effect that an application under Order 39 Rule 2-A C.P.C. does not survive after the restraint order is vacated or the CIVIL REVISION NO. 1929 OF 2009 -2- suit has been dismissed or decided.
2. The aforesaid issue is best summed up in the words of the learned Single Judge in the referral order as follows:
"From the facts of the case and the arguments addressed by parties, the following questions fall for adjudication:-
(1)Whether proceedings under Order 39 Rule 2-A of the Code of Civil Procedure are in the nature of proceedings for punishment for violation of a restraint order or for ensuring obedience of the restraint order or for both?
(2)Whether proceedings under Order 39 Rule 2-A of the Code of Civil Procedure are rendered infructuous, if the suit is decided or the interim order is vacated?
Order 39 Rule 2-A of the Code reads as follows:-
"2-A. Consequence of disobedience or breach of injunction.-(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2)No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
A bare perusal of these provisions leaves no ambiguity that Order 39 Rule 2-A consists of two separate and distinct parts: the first for ensuring compliance and the second for punishment. A Division Bench of this Court in Rachhpal Singh v. Gurdarshan Singh (supra) , while considering the ambit of Order 39 Rule 2-A and after placing reliance upon certain observations made by the Hon'ble Supreme Court in State of Bihar v. Rani Sonabati Kumari, AIR 1961 Supreme Court 221, has held that as Order 39 Rule 2-A has been enacted to enforce injunctions, initiation or continuation of proceedings after the ad interim injunction is vacated, cannot be countenanced. The opinion, though, recorded in the context of an ad interim injunction that was subsequently vacated, the enunciation of law would necessarily apply to all applications even where the restraint order has been vacated or the suit has been dismissed.
With due deference to opinion recorded by the Hon'ble Division Bench in Rachhpal Singh case, the opinion appears to be at variance with the provisions of Order 39 Rule 2A and a judgment of the Hon'ble Supreme Court in Samee Khan v. Bindu Khan CIVIL REVISION NO. 1929 OF 2009 -3- ( supra), where while considering the scope and ambit of Order 39 Rule 2-A the Hon'ble Supreme Court held as under:-
"But the position under Rule 2-A of Order 39 is different. Even if the injunction order was subsequently set aside the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside. For what purpose the property is to be attached in the case of disobedience of the order of injunction? Sub-rule(2) provides that if the disobedience or breach continues beyond one year from the date of attachment the court is empowered to sell the property under attachment and compensate the affected party from such sale proceeds. In order words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobedience ceases to continue in the meanwhile the attachment also would cease. Thus even under Order 39, rule 2-A the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience." (emphasis supplied) It would also be necessary to refer to and reproduce an extract from a judgment of the Hon'ble Supreme Court reported as Tayabbhai M. Bagasarwalla & another v. Hind Rubber Industries Privated Limited, 1997(1) Apex Court Journal 246 (S.C.):-
"The correct principle, therefore, is the one recognised and reiterated in Section 9-A to writ, where an objection to jurisdiction of a Civil Court is raised to entertain a suit, and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the Court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the Court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such orders to make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise, in such a case, the court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of jurisdiction." (emphasis supplied) The judgments in Samee Khan v. Bindu Khan (supra) and Tayabbhai M. Bagasarwalla & another v. Hind Rubber CIVIL REVISION NO. 1929 OF 2009 -4- Industries Privated Limited (supra), are unambiguous in their enunciation of law that proceedings under Order 39 Rule 2-A of the Code have been enacted both for compliance and punishment and the decision of a suit or the vacation of an ad interim injunction would not render an application filed Under Order 39 Rule 2-A of the Code, infructuous. A Single Bench of this Court, has held in Smt. Rajinder Kaur v. Sukhbir Singh, 2002(1) Civil Court Cases 125 (P&H) after placing reliance upon the judgment in Samee Khan v. Bindu Khan(supra) that proceedings under Order 39 Rule 2-A do not come to an end with the decision of a suit."
3. In our view, the learned Single Judge has eloquently analyzed the judgments of the Hon'ble Supreme Court in Samee Khan v. Bindu Khan, AIR 1998 Supreme Court 2765, Tayabbhai's M. Bagasarwalla & another v. Hind Rubber Industries Privated , 1997 (1) Apex Court Journal 246, and we are of the view that the learned Single Judge has correctly laid down the ratio emerging from the two judgments. We affirm the view of the learned Single Judge based upon the Hon'ble Supreme Court's judgments in Samee Khan's case (supra) and Tayabbhai's M. Bagasarwalla's case (supra), to the effect that the provisions under Order 39 Rule 2-A of the Code of Civil Procedure are not only meant for securing compliance of the orders passed by Courts, but also provide for punishment in case of any violation of the same order. In addition, in case the suit is decided or the ad interim injunction is vacated, any violation which takes place while such order was operative, would not render an application under Order 39 Rule 2-A of the Code infructuous in so far as question of punishment is concerned. We consequently also uphold and reiterate the decision rendered by a Single Bench of this Court in Smt. Rajinder Kaur v. Sukhbir Singh, 2002(1) Civil Court Cases 125(P&H), which in turn places reliance upon the judgment in CIVIL REVISION NO. 1929 OF 2009 -5- Samee Khan's case (supra) wherein it was opined that decision in a suit does not put an end to the proceedings under Order 39 Rule 2-A of the Code.
4. In our opinion, in a situation where final orders as to injunction are passed by the competent Court and no appeal is filed with respect to the same, the case effectively comes to an end. However, if the party which is restrained by such injunction order, subsequently violates the same, and the aggrieved party has to go through the entire rigmarole of filing a fresh suit to enforce its rights, it would defeat the very purpose which is integral to Order 39 Rule 2- A . Similarly, there may arise a situation where a statement or undertaking is given by the party which is restrained by way of an injunction order, to the effect that it would not indulge in activities which would be contrary to such orders and the suit is disposed of on the basis of such an undertaking. However, at a later stage, if the said party contravenes the order or violates its own undertaking to the Court, it would again defeat the purpose of Order 39 Rule 2-A if the afore-said aggrieved party is compelled to file a fresh suit.
5. The statement of objects and reasons of the amending Act of 1976, which brought into force Order 39 Rule 2-A in fact makes clear the Legislative intent in the following words:
"Amendments: Objects and Reasons- Clause 89 - Sub Clause (iii). New rule 2-A is being inserted to provide for the consequences of a breach of an injunction issued under Rule 1 which is at present not conversed. The amendment is intended to seek the application of the provisions for breach which are, at present, available under an injunction granted under rule 2, to the said class of cases as well. There is controversy as to whether under the existing provision, a Court to which a suit is transferred can punish disobedience of an CIVIL REVISION NO. 1929 OF 2009 -6- injunction issued by the predecessor Court. New rule 2- A provides that the transferee Court can also exercise this power. (Statement of Objects and Reasons (Bill)- Gazette of India, Ext, dt. 8-4-1974, Pt. 11, S.2, p.335-
336.)"
6. The above Legislative intent thus makes it clear that in a manner akin to the power available to a successor Court, a Court dealing with a violation which affects the operation of an order passed when the suit was pending or an order pursuant to the suit was in force can also be dealt with under Order 39 Rule 2-A of the Code of Civil Procedure.
7. We, therefore, are clearly of the view that the judgment of the Division Bench of this Court in Rachhpal Singh v. Gurdarshan Singh, AIR 1985 Punjab and Haryana 299 and the other learned Single Judge's judgment in Darshan Singh v. Sadha Singh, 2002(2) PLR 680, do not lay down the correct position of law in light of the judgments of the Hon'ble Supreme Court in Samee Khan's case (supra) and Tayabbhai's case (supra). We, therefore, uphold the view taken by the learned Single Judge in this case while referring the matter to the Full Bench. The Reference is answered accordingly. The revision petition be listed before the Single Bench as per roster on May 28th , 2010.
(MUKUL MUDGAL) CHIEF JUSTICE (JASBIR SINGH) JUDGE (RAJIVE BHALLA) JUDGE April 22, 2010.
DKC